Clark v. Waterman

The opinion of the court was delivered by Mattocks, J. The question is, whether the facts found by the auditors will in law justify the conclusion they came to, that the defendant was liable to the plaintiffs for their services as physicians, in attending upon Caroline Hubbard, then resident at defendant’s house. If it was the intention of both parties that the defendant should pay the bill, then it would be a contract to that effect. The employment or request to attend upon the patient was made and often repeated by the defendant, in person. Complaints of the inefficient practice of one of the plaintiffs, and an exchange for the other, like a man acting in his own business, and at last a virtual admission that it was his expectation to pay, by calling for the bill to lay before the town, “ to see if they would not assist him this appears like an original employment by the defendant; and the plaintiff’s making the charges directly against him is evidence that they so understood it. If these facts were such as it would have been proper, in action of assumpsit, to have left to the jury, then they were sufficient for the auditors to act upon. The other circumstances in the case, that the patient had been brought up by the defendant, and although she had been three years out of her time, yet continued most of the time in his family, and “ in his employ, without contract or accounting,” renders it not improbable [78] that he was willing to render her all needful aid in time of sickness, ° - . .. and that his intention was really such as his conduct naturally indicated. It is true, as contended by defendant’s counsel, and as stated by Starkie, “ that a master is not liable on an implied assump-sit to pay for medical attendance on his servant.” Although Lord Kenyon, in Learman vs. Castell, 1 Esp. Rep. 270, ruled he was, yet it had before, in Newbury vs. Willshire, reported in 2 Esp. 739, in King’s Bench, been decided otherwise; and in Wennall vs. Adney, 3 B. and P. 247, it was fully so settled; but never, it is believed, has it been so decided, if the attendance was at the request of the master. But however that may be, we do not put the case upon the ground of master and servant; but there being a request by the defendant, in his own name, upon the credit of which the services were rendered, it is very much as if the defendant had directed a shop-keeper to deliver her goods; and if he had not added, “ charge them to me,” or “ I will pay for them,” yet he would be chargeable with what was delivered in consequence; certainly, if by any subsequent act it should appear that he expected to pay for them. There seem to have been benevolence and kind intentions in the defendant towards the suffering female to whom he had formerly been in the place of a parent, and who was still an inmate of his family ; and he should now meet the expenses those good feelings have occasioned to the plaintiffs; for although -their practice was not successful, yet the result was quite professional. ’ We do not mean by this determination to intimate, that a man who, by himself or another, happens to go for a doctor to attend a hired man, or maid, or sister, or friend in his house, is of course liable to pay the bill. In many, and perhaps most of these cases, the person going or sending might be regarded as a mere '''"medium of intelligence that a physician was wanted; but where the proof in the case is sufficient, as we think it was in this case, to authorize the triers to find that the defendant intended, and gave the plaintiffs so to understand, that he was himself the employer, then the original credit was given to him; then he is liable upon general principles, and it not being the debt of another, is not affected by the statute of frauds. Judgment of county court affirmed.